The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-01-29

fronted then, an sxieency that seemed likely at
one time to Involve bloodshed that, great as the /
courts were, wise ard ample as are the powers
confided TO them. there was no relief in the |
courts of the United States. 1t was a political |
question. 1t might involve war, but the courts |
conld not solve the trouble.
Justice Zollars-That is not the question that |
is troubling Judge Mitchell and myself, as indi- |
Gated by questions The difficulty. in my |
mind, is back of all that Nobody has ever con |
tended that the court might have power to set |
tie the question to who was elected but back |
OF that is tho constitutional question, the legal
question, as to whether or rot there may be an |
election. That is the question that l wish to
hear discussed now. Whether the decision |
of that question is exclusively with the Iegis- |
lature, whether that is not question for the
courts.
Senator Harrison-Tn the very nature of things
it must be So OF else their power over the sub
feet is limited The Jurisdiction is divided be-
tween the Legislature and the courts or it must
be ample in the Legislature over that whole
question. | take it, if your Houors please that
the counsel have qubbled with this provision of
our Constitution, which re enforces the general
idea that have been advocating that it does
not matter whit whether somebody raises
the question whether the election was to take
place at that particular time, whether there
might be election then; if the decision of that
political question as to who is Governor, and
when ne became Governor, and his in
duction into Office rests with the Legislature
then no phase OF it is reserved to the
please, the reason for all this is very obvious
The Constitution and the law were very careful
to place the court where it might never become
the subject of ridicule; very careful never to
confde to it powers that il could not execute
There are certain questions of this kind upon
which tho judgment Of conrts must be futile.
in the very nature of things the Legislature
stands so related to this question that it
wisely by cur Constitution, Invested with the
decision Of the whole matter, and not frag-
nent of it.
have said that the Constitution makes a
special grant OF power over this subject to the
Legislature.
Contested elections for Governor Lieutenantgov-
shall be determined by the General Assembly in
such manner rs may be prescribed by law.
Now, if your Honors please, want to say one
word about the manner in which this court
ought to approach the construction and consid-
5ralion OF that article of the Constitution and of
yhe others to which shall allude presently. My
learned friend says the Constitution is to be
strictly construed because it is grant of power
from the people. But the question here is not
one OF limiting power; it is q question whether
this court Will assume it Or leave it where the
Constitution has placed it. 1t is not
a question of the excess, or ex-
tent. enlargement of this section
at ALL 1t is question whether it shall pass un-
der this section, specific in its character, or
whether this court will assume to have it under
the general clause of the Constitution apportior
ing the judicial power to the courts. Is there
any doubt about what the construction ought to
stitution have dealt with the particular question
and have said that its decision should be confided
to one tribunal shall the general grant OF judicial
power be strained to embrace part of it9
Upon this question of the right to elect Lieu
tenant-governor. and may as we'll refer to it
now, the same principle should be applied. The
Constitution is to be strictly construed against
the right Of the people that made it to elect their
own officers! That is the argument of my
friend. If there is any strict construction to be
applied, it is in the interest of the
people; it is that something may not be taken
TO- have been GRANTED that the people
did not intend to give. But is strict construc-
ton to be applied to the question whether they
have not reserved this power to themselves to
select Lieutenant-governorb By their own votes.
instead Of having him designated by the vote of
single county? Is no. that perversion of the
doctrine to which my friend alluded, that there
Should be strict construction Of the Constitu-
tionY Now. if your Honors please. with refer
Ance TO the Gaming of this special clause: Con-
tested elections for Governor or lieutenant
governor shall De determined"-sHALL be deter
Contested elections for Governor or
Lieutenant governor shall be determined by the
General Assembly" Now, may l ask your
Honors, especially as it is question of taking
jurisdiction yourself. and denying it to tho Leg
islature, why that question should be app. cached
In a technical spritl
AS my friend, the Attorney general, who has
30 ably presented the questions in this case, has
said TO con test election is to deny it; to dis
pute it. Now the ground Of the dispute may be
that someone else was elected ana not ms ma
or the ground OF 1t may be that there was no
election at nil, and that some person holding by
appointment is entitled to exercise the duties OF
the office. But in either event the election Of
Colonel Robertson is denied; it is controversial
it is contested il is rnpeacbed. And how shall
this court say that if that honorable man, whom
am glad to say is not here as relator, who was
his competitor before the people, had been ap-
plying for this writ OF maacate impeachine
Colonel Robertsons title upon any question, II
would have been called n contest: but because a
man who holds or claims 20 hold the Office under
the designation of tia Senate of Indiana comes
here saying, Though you received the majority
of the legal votes of Indiana, you not elected:
7 contest your election and claim TO exercise the
duties of the Office myself it is not a contest.
This court is invited to say, Two will diminish
this power, confied by tho Constitution to the
Legislature for obvious reasons, that this politi
cal department. might deal with that polltica
question, and we will absorb it for the judiciary
Of this State; we will assume to settle the ques
tion whether the Legislature rightly opened anG
canvassed those votes--whether there was a va
cancy." Is it not better, if your Honors please
that this whole question, all phases Of 1t, shoul
so to one tribunal or the other and that "
should not engage in any hairs pli.ting in at
tempting to divide it'll This is the OF con
tested election for Lleutenant-gorcrnor It
the of an election denied controverted
challenged. And the Legislature, by expires
provision Of the Constitution, is to deal with tina
question, and, az | have suggested, for YER
obvious reason.
In case in Goth Kansas, atpage 7o2. there is
very clear statement Of these limitations upo
the power of the judiciary.
Within certain constitutional restrictions tn
executive legislative and Judicial powers of the Stat
are independent and supreme and neither has th
right to enter upon the exclusive domain the other
We should pass beyond the limits of powe
TO judgs of the election qualifications of a membe
of The Legislature, and the Constitution has ex
pressly conGded this power to another body, mus
leave it where it has been deposited by the funds
menta law
Now, if your Honors please. do not hesitat
TO say that entirely outside and independent c
that provision of our Constitution which make
each house of the General Assembly the juig
OF the election and qualifications of it's ow
members that would be true, inherently, an
without any snch constitutional nroyision at al